UNI TED STATES DI STRI CT COURT FOR THE DI STRI CT OF COLUMBIA

____________________________________ ) RANDOL PH S. KOCH, ) ) Plaintiff, ) ) v . ) Civil No. 06-0656 (PLF) ) MARY L . SCHAPI RO, ) Chairman, Secur ities and ) Ex chang e Commissi on, ) ) Def endant. )

1 ____________________________________)

MEMORANDUM OPI

NI ON This employ

ment discrimination matter is befor e the Court on def endant’ s motion for summary

judgme nt to which plaintiff has not re sponded. On June 19, 2009, the Court issued an Or der pur suant to Fox v. S trickland, 837 F .2d 507 (D.C. Cir. 1988) and N eal v. Ke lly , 963 F.2d 453 ( D.C. Cir. 1992), direc ting plaintiff to r espond to defe ndant’s motion by J uly 17, 2009 and informingplaintiff of the r isks of failingto respond. See O rder , Dkt. No. 41 (June 19, 2009). Plaintiff stil l has not responde d to defe ndant’s motion, made any reque st for an e x tension of time, or made a

ny other filingwith the Court in the time since the Court’s Orde r. The Court there fore may

treat defe ndant’s motion as conc eded. T he Court also has c onsidered the substance of

defe ndant’s motion and, af ter c are ful consider ation of the motion, the ac company ing exhibi ts, and the re levant ca se law a nd statutes, it has conclude d that the motion should be g rante d on its merits.

The Court has substituted Chairman Mar y Schapiro a s defe ndant in place of for mer 1 Chairman Christopher Cox pursuant to Rul e 25(d) of the F eder al Rules of Civil P roce dure.I . BA CKGROUND Pro se plaintiff, Randolph Koch, is a Jewish white male ove r the a g e of 40. See Motion for Summary

J udg ment (“Mot.”) , Def

endant’ s Statement of Material Fa cts as to Which There is No Genuine I ssue (“ Def . Fa cts”) ¶ 2. Plaintiff alleg es that he is disabled w ithin the meaningof the Reha

bilitation Act. See Complaint ¶ 6. Pl aintiff has f iled numerous complaints ag ainst various of his employ ers in the United States D istrict Court for the District of Columbia alleg ing violations of Title VI Iof the Civil Ri g hts Act of 1964, as a mended, 42 U.S.C. §§ 2000e et seq., the Reha

bilitation Act, 29 U.S.C . §§ 791, 794, and the Ag e Discr imination in Employ ment Act, 29 U.S.C. §§ 621 et seq. on ac count of his asser ted disability , his race , relig ion, ag e, and g ender . See id. ¶ 7. 2

At the time of this action plaintiff wor ked for the United States Secur ities and Ex chang e Commissi on (“SEC”) a s a financ ial analy st. He alleg es that the SEC discriminated ag ainst him and retaliate d ag ainst him by g iving him low per formanc e appr aisals and by not enrollinghim in it s Student L oan Repa y ment Prog ram. See Compl. ¶¶ 11-17. The loa n repa y ment prog ram wa s cre ated to attra ct or re tain individuals deemed to be “ highly qualified” with respec t to certa in aspec ts of the SEC’s missi on by assisting them in re paying the ir outstanding f

eder ally insured student loans. See D ef. F acts ¶¶ 4, 5. On J uly

30, 2003, plaintiff nominated himself for the loan re pay ment prog ram a

nd submitt ed his application to his supervisor, F rank D onaty , for c ertifica tion. See id. ¶ 3. In order to enroll an e mploy ee in the loan re pay

ment prog ram, the e mploy ee’ s supervisor must cer tify that: (1) the e mploy ee is Many of those ca ses ar e either

curr ently pendingbefor e this Court or previously have 2 been r esolved by

this Court. 2deeme d to have “ high or unique” qua lifications with respec t to certa in aspec ts of the SEC’s mission; (2) the e mploy ee is c onsidered likely to leave the fede ral g overnme nt absent enr ollment; (3) r etention of the e mploy ee is “ essential.” See id. ¶ 6. Mr. Donaty conclude d that he could not

cer tify that plaintiff met any

of these thr ee r equire ments, and so he de clined to re commend plaintiff for the loan re pay ment prog ram. See id. ¶ 7. Mr. Donaty

based his dec ision on plainti ff’ s perf ormanc e eva luations from 1998 to 2002, duringwhich time plaintiff re ceive d four “ Fully Successf ul” ratings a

nd one “Unsatisfactory” rating. See Def . Fa cts ¶ 8. The SEC uses a rating s scale that beg ins at the hig h end with “Outstanding ,” followe d in decr easingorder of per formanc e by

“Exceeds F ully Successf ul,” “F ully

Successf ul,” “Minimally

Successf ul,” and “ Unsatisfac tory .” See id. ¶ 9. When plaintiff rec eived “ Fully Successf ul” ratings, the e valuations also discussed proble ms with his perfor mance . See id. ¶ 10. Plaintiff neve r re ceive d a rating hig her tha n “F ully Successf ul” duringthe prior ten year s, and he r ece ived one “ Minimally Successf ul” rating dur ing the same time period. See id. ¶ 8. Plaintiff a lleg es that the SEC discriminated ag ainst him and retaliate d ag ainst him by

g iving him low per formanc e appr aisals and by not enrollinghim in the student loan re pay

ment prog ram. See Compl. ¶¶ 11-17.

I I . STANDARD OF REVI EW Summary judgme nt may

be g rante d if “the ple ading s, the discover y and disclosure materia ls on file, and any aff idavits [ or dec larations] show that there is no ge nuine issue as to any materia l fac t and that the movant is entitled to judgme nt as a matter of law.” F E D . R. C I V . P. 56(c) ; see a lso Anderson v. L iberty L obby , Inc., 477 U.S. 242, 247-48 (1986) ; Holcomb v.

3Powell, 433 F.3d 889, 895 (D .C. Cir. 2006). “A fa ct is ‘mater ial’ if a dispute ove r it might af fec t the outcome of

a suit under the g overninglaw; fa ctual disputes that ar e ‘irr eleva nt or

unnece ssary ’ do not aff

ect the summar

y judgme nt determination.” H olcomb v. Powell, 433 F.3d at 895 (quotingAnder son v. L iberty L obby , Inc., 477 U.S. at 248). An issue is “g enuine” if the evidenc e is such that a r easona ble jury could re turn a ve rdict for the nonmoving pa

rty . See Scott v. Har ris, 550 U.S. 372, 380 (2007); Ander son v. L iberty L obby , Inc., 477 U.S. at 248; Holcomb v. Powell, 433 F.3d at 895. B eca use plaintiff ha s not responded to de fenda nt’s motion, the Court has trea ted all of the f

acts identified in de fenda nt’s Statement of Mater ial Fa cts as to Which There is No Genuine I ssue as a dmitted pursuant to L ocal Civil Rule 7(h)(1). T he only question befor e the Court, ther efor e, is whethe r these c oncede d fac ts entitle defenda nt to judgment as a matter of la

w. See F E D . R. C I V . P. 56(c). 3

I I I . DI SCUS SI ON Plaintiff invokes numerous of the f eder al statutes that prohibit discrimination in employ ment. Title VI I

of the Civil Ri g hts Act prohibits ex ecutive a g encie s from eng ag ing in employ ment discrimination based on ra ce, c olor, relig ion, sex , or national orig in. See 42 U.S.C. § 2000e-16( a). The Ag e Discr imination in Em ploy ment Act (the “ADE A”) provides, in per tinent part, that “ [i ]tshall be unlawf ul for an e mploy er to . . . discriminate ag ainst any individual with respe ct to his compensation, terms, conditions, or privileg es of e mploy ment, beca

use of suc h

That havingbeen sa id, beca use plaintiff is proc eeding pro se , the Court has eva luated his 3 complaint under “ less stringe nt standards than f ormal plea dings dr afte d by lawyers.” Chandler v. W.E. W elch & Associates, Inc., 533 F . Supp. 2d 94, 102 (D.D.C. 2008) (quotingHaines v. Ker ner , 404 U.S. 519, 520, (1972)); see also Gra y v. Poole , 275 F.3d 1113, 1115 ( D.C. Cir. 2002). Althoug h plaintiff is proce eding pro se , the Court notes that he is an a ttorney

. 4individual’s ag e.” 29 U .S.C. § 623(a)(1) . The Reha bilitation Act prohibits, among other things, discrimination on the basis of disability in fede ral e mploy

ment. See 29 U.S.C. § 794. These civil rig hts statutes also all prohibit feder al ag encie s from re taliating a g ainst employees f or eng ag ing in pr otected a ctivities. See 42 U.S.C. § 2000e-3(a ); 29 U.S.C. §§ 621 et seq.; 29 U.S.C. §§ 701 et seq

. ; see a lso Baloc h v. Kempthorne , 550 F.3d 1191, 1198 ( D.C. Cir. 2008).

Two esse ntial elements ar e common to discrimination and re taliation claims under Title VI I , the ADEA , and the Reha bilitation Act: (1) that plaintiff suffe red a n adver se ac tion, (2) be cause of his rac e, color , relig ion, sex , national orig in, ag e, disability or prior pr otected activity . See B aloch v. Ke mpthorne, 550 F .3d at 1196, 1198. Absent direc t evidence of 4 discrimination or reta liation, analy sis of such claims under Title VI I , the Rehabilitation Act, and the ADEAbeg ins with the familiar McDonne ll Dougla s burden- shifting f rame work. See McDonne ll Dougla s Corp. v. Gree n, 411 U.S. 792, 802-03 (1973); see also J ones v. B erna nke, 557 F.3d 670, 677 ( D.C. Cir. 2009); Ba loch v. Kempthorne , 550 F.3d at 1197, 1200. Traditionally , within that framew ork, a pla intiff must first establish a prima facie case of discrimination (or re taliation). See Moncada v. Peters, 579 F . Supp. 2d 46, 53 (citing Te neyck v. Omni Shoreham Hotel, 365 F .3d 1139, 1149 (D.C. Cir. 2004)). “ Doingso cre ates a rebuttable presumption of discrimination [or retaliation] and ‘trig g ers the e mploy er’ s burden to produc e admissible evidence that, if believe d, would establish that the employ er’ s action wa s motivated by a leg itimate, nondiscriminatory rea son.’” Monc ada v. Pete rs, 579 F. Supp. 2d at 53 ( quoting Tene y ck v. Omni Shoreham Hotel, 365 F.3d at 1151).

Actionable a dverse actions in the re taliation context “encompass a br oader swee p of 4 actions than those in a pur e discrimination claim.” B aloch v. Ke mpthorne, 550 F .3d at 1198 n.4. 5Rece ntly , the United States Court of Appe als for the District of Columbia Circuit

clar ified that a “ district court nee d not — and should not — decide whether

the plaintiff ac tually made out a prima facie case under Mc Donnell Doug las” at the summary judgme nt stag e if the plaintiff “ha s suffer ed an a dverse employ ment action, and [the def

endant] has asser

ted a leg itimate, non-discriminatory rea son for the de cision.” B rady v. Offic e of the Serg eant a t Arms, 520 F.3d 490, 494 ( D.C. Cir. 2008) (empha sis in original).

Rather . . . in those c ircumstance s, the district court must resolve one ce ntral question: Has the e mploy ee pr oduced suf ficient evidenc e for

a re asonable jury

to find that the employ er’ s asserte d non-discriminatory

rea son was not the ac tual rea son and that the employ er intentionally

discriminated ag ainst the employ ee on the basis of [any

statutorily

prohibited fac tors]? I d. This frame work for

analy sis under B rady

“appl[ies] equally

to retaliation cla ims” as it does to discrimination claims. J ones v. B erna nke, 557 F .3d at 678. Def endant ha s proffe red le g itimate non-discriminatory and non-r etaliatory

rea sons for plaintiff’ s perf

ormanc e re views and his non-e nrollment in the student loan repa y ment prog ram. See J ones v. B erna nke, 557 F .3d at 677; Ba loch v. Kempthorne , 550 F.3d at 1197, 1200. Plaintiff’s supervisor, F rank D onaty , explained that the perf ormanc e re views cited 5 specific complaints about plaintiff’s pe rfor mance , such as plaintiff’ s failure to meet dea dlines, his inappropriate comments, and his nee d to improve his analy tical skills and awar eness of ag ency developments by

workingmore fr equently with other member s of the staff . See The Court will assume without decidingthat plaintiff’s mediocr e per formanc e 5 evaluations and the corr espondingnon-enr ollment in the loan repa y ment prog ram a

re a dverse actions. See B aloch v. Ke mpthorne, 550 F .3d at 1199 (In the re taliation context “perfor mance revie ws ty

pically constitute adver se ac tions only when attached to f

inancial ha

rms,” bec ause only then do they

“af fec t [ plaintiff’s] positi on, g rade level, sala ry or promotional opportunities.”).

6Def

endant’ s Motion for Summary J udg ment, Ex . A (De clar ation of F rank John Donaty , J r.) ¶ 7. Mr. Donaty

further explained that he base d his decision not to enroll plaintiff in the loan repa y ment prog ram in par

t on these per formanc e eva luations from 1998 to 2002. See id. ¶ 6. In addition, Mr. Donaty

could not cer

tify , as wa s require d by

the program, that plaintiff w as an employ ee w ith high or unique qualifications, who met a specia l SEC need, and who wa s likely to leave the SEC if he did not participate in the pr ogram or w hose re tention was esse ntial. See id. ¶ 8. Finally , Mr. Donaty stated that his decision wa s not based on either discriminatory

or re taliatory

rea sons relate d to plaintiff’s re ligion, ag e, alleg ed disability , or past prote cted activity . See De f. F acts ¶ 12. Plaintiff has proff ere d nothing that would r aise a g enuine issue of 6 materia l fac t as to whether this ex planation is pretextual. The undisputed fa cts show that defe ndant did not unlawfully discriminate or r etaliate a g ainst plaintiff. As a r esult, the defe ndant is entitled to judgment as a matter of la

w.

There is no evidence that plaintiff’s ag e wa s a fa ctor in the de cision not to enroll him in 6 the loan re pay

ment prog ram. Plaintiff has not supported his a lleg ation that enrollment in the prog ram is biased a g ainst older employees. See Compl. ¶ 17. In fac t, the one employee who was enrolled in the r epay

ment prog ram at the rele vant time was a lso over the a g e of f orty , but he had highe r per formanc e ratings a nd qualifications than did plainti ff. See Mot., Memorandum in Support at 7, 15-16. 7I V. CONCLUSI ON For the fore g oing r easons, the Court will g rant de fenda nt’s motion for summary judgme nt. An Orde r consistent with this Memorandum Opinion will issue this same da y . SO ORDERED. /s/_____________________ PAULL . FRI EDMAN United States District J udg e

DATE: Mar ch 23, 2010

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